Prisoners Rights and the Legality of Immigration Detention During the Covid-19 Pandemic

Olivia Bennett writes a three-part series on the impact of the coronavirus pandemic on the criminal justice system. In her first article, she discusses prisoners' rights and the legality of immigration detention during the COVID-19 pandemic.

Last month, the United Kingdom took the unprecedented step of announcing a near full lockdown. In doing so all citizens, except for key workers, were ordered to stay at home and enforce social distancing of at least two metres. The aim of such measures is to limit the spread of the coronavirus. Although severe, these rules have been regarded as both proportionate and necessary to protect the health of society. But not everyone can abide to these measures. What about the members of our society whose living conditions make social distancing near impossible: such as prisoners and immigration detainees.


Detention during the pandemic - infringement on the human right to health?


There are 83,430 prisoners and 1,727 immigration detainees in the UK. Their incarceration is a direct infringement of liberty - a fundamental human right - permitted by common law and parliamentary legalisation. This is considered proportionate to achieve public safety. However, the infringement of a detainees’ health is not. The ‘right to life’ is enshrined in Article 2 European Convention of Human Rights and cannot be restricted by the state in any circumstance. Fyodor Dostoyevsky, philosopher and author, proclaimed "the degree of civilisation in a society can be judged by entering its prisons.” This assertion underpins the moral importance of a system that ensures whether incarcerated or not, each citizen in the UK has the same fundamental right to health, that I or you reading this share.


Her Majesty’s Prison Service, the government body which controls UK prisons, is not a stranger to criticism. Decades of underfunding has led to understaffing and unhygienic living conditions, with the safety of both prisoners and staff a prominent concern. In light of the pandemic, perhaps most troubling is the systemic overcrowding in prisons. Howard Penal Reform statistics show that at least 10 prisons in the UK are operating above 150% of their capacity. In practice, this means cramped cells, barely two metres in width are commonly shared by inmates, resulting in dangerous overcrowding, violence and prison mutiny. Amidst COVID-19, overcrowding not only renders social distancing near impossible, it could have life threatening implications.


The National Health Service (NHS) has identified people with pre-existing medical conditions and/or those over 70 as the most vulnerable. Sadly, at the time of writing an eighty-four-year-old prisoner in HMP Littlehey and 66 year old prisoner in HMP Manchester have already passed away as a result of COVID-19. Thus far, reports show that 19 prisoners have tested positive for coronavirus and there is one confirmed case at Yarl’s Wood Immigration Removal Centre (IRC). Furthermore, the current limitation of testing kits may mean many cases are undetected. Approximately 1,800 members of the UK prison population are over 70 and 15% are known to have respiratory conditions. It is highly probable there will be more deaths as we approach the peak of the pandemic in the coming weeks.


What action could the government take?


The United Nations High Commissioner for Human Rights, Michelle Bachelet, has advised that “authorities should examine ways to release those particularly vulnerable to COVID-19” and that failure to so would “risk rampaging through” the livelihood of the incarcerated. Worldwide, many countries have followed this advice. Iran have temporarily released over 85,000 prisoners. The US state of New Jersey has agreed to release 1,000 prisoners from county jails. In Europe, Poland is set to release 12,000 prisoners. Yet, the HMPS has not acted.


Contrastingly, IRCs have moved swiftly. Largely due to the charity, Detention Action, which successful argued before the High Court that detainees should be released for two reasons. First, detainees identified within high risk groups - as outlined by the NHS - must be released for their health. This argument was strengthened by highlighting that the purpose of immigration detention is to administer the deportation of foreign nationals. It is not punitive. Thus, detainees pose minimal risk to public safety and can readily be released. 350 detainees have been released on this ground. Second, in these unprecedented circumstances detention is illegal. English and Welsh law provides that detention can only be lawful ‘where deportation is imminent’. Thus, it follows that as many borders are closed and there are strict restrictions on travel, deportation cannot be imminent, and therefore it cannot be legal. The Home Office has agreed not to newly detain foreign nationals from a list of 50 countries which has closed its borders.


The HMPS must now act. The Justice Secretary, Mr Buckland, has acknowledged in the House of Commons that releasing inmates on temporary licence could help to "alleviate pressures” of the pandemic. In practice, this is likely to apply to prisoners who have committed non violent minor offences, or some of the 9,000 prisoners in custody while awaiting trial. In such instances, after passing a risk assessment the prisoner could alternatively be detained via a home curfew, electronic monitoring and alternative community methods.


If prisoners are to be released, the need to protect life must be considered in balance with the need to protect the wider public. On balance, after a thorough risk assessment the temporary release of prisoners, convicted for non violent minor offences, into community-based alternatives seems proportionate. This would significantly reduce the risk of overcrowding in prisons, making social distancing more achievable, and ultimately save lives. To not release prisoners would be a concession that we have a two tier discriminatory system, that knowingly infringes the right to health of the incarcerated. What does that say about our civilised society? There is a blueprint for HMPS to follow. They must look internationally at the approach of other countries. They must consider the steps IRC’s have taken in releasing 350 detainees. It is time for the HMPS, where possible, to follow.

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